Kansas City, Memphis & Birmingham Railroad v. Cantrell

70 Miss. 329

Opinion

Cooper, J.,

delivered the opinion of the court.

"While the verdict on the facts in evidence in this cause for the defendant would have been more satisfactory to us, we cannot say that the finding in favor of the plaintiff is not supported by the evidence. There is conflict in the testimony in reference to the distance the animal ran in front of the train before it was overtaken and killed, and though we think it probable the train could not have been stopped in time to prevent the injury, even if the evidence of the plaintiff’s witnesses is accepted as fixing the distance the animal ran after getting on the road-bed, we cannot say that the jury was not warranted -in reaching a different conclusion. Under such circumstances, the trial court rightly refused to give the peremptory instruction asked by the defendant.

The point principally pressed by counsel for appellant is that the verdict should have been for the defendant, for the reason that the action is brought by A. C. Cantrell — the owner of the animal killed — -for the use of D. E. Cantrell, and'that there is an absence of any evidence tending to show that the usee had or has any interest in the claim sued on. It is settled that actions of this character are, in the'ir nature, ex delicto. Miss. C. R. R. Co. v. Fort, 44 Miss., 423; R. R. Co. v. Andrews, 61 Ib., 474.

In actions of tort there cannot be a usee, and, if one is named, his rights must be disregarded, and the plaintiff will fail of recovery unless the right of the nominal plaintiff be proved. This rule has been applied by this court in various classes of actions: In trespass (Brown v. Thomas, 26 Miss., 335; Lacoste v. Pipkin, 13 Smed. & M., 589); in detinue Handley v. Buckner, 6 Smed. & M., 70); and in replevin (Pearce v. Twichell, 41 Miss., 344; Meyer v. Mosler, 64 Ib., 610).

The judgment is affirmed.